Chapter 5 CHAPTER 5 Add in the Ballots Determined to be Legal, Subtract the Ballots Determined to be Illegal, Unless the Fairness of the Election has Been Undermined Earlier, we saw that election results will be upheld unless it has been proven in court that irregularities or illegal activities changed the result of an election or made it impossible to determine the will of the electorate. We also saw examples of the kinds of specific evidence that had to be introduced to show that those irregularities took place and that the result of an election was (or could be) changed by those irregularities. Some plaintiffs proved that particular ballots were invalid (because they lacked a poll official’s initials, for example), while other plaintiffs proved that the voters were not legal voters (because they did not live in the jurisdiction holding the election or were improperly registered to vote). The question presented in this chapter is what should a court do once it determines that particular ballots are invalid? Should the court order that the remaining valid ballots be counted and the winning candidate determined by that count? Should the court order that the election be held again in the precincts where the tainted ballots were found and those results then added to the results from the other precincts? Or should the entire election be held again to obtain a true result untainted by irregularities? The answer will depend on whether the court can determine the will of the electorate. A. The court will subtract the illegal votes when possible, but void the election when the number of undetermined illegal votes is greater than the margin of victory. Where the courts can determine which ballots were illegal but had been counted, those ballots are subtracted from the candidates’ totals. Where the courts can determine which ballots were legal but had not been counted, those ballots are added to the candidates’ totals. After the illegal votes have been subtracted from the candidates’ totals, and the legal votes have been added, the candidate with the most votes will be the victor. Cases discussed in earlier chapters have given good examples of the way that courts dealt with these types of situations. • In Boardman v. Esteva, 323 So.2d 259 (Fla. 1975), Edward F. Boardman had received 643 more absentee ballot votes than Henry Esteva and had won the election by 249 votes. Mr. Esteva challenged 1,450 absentee ballots. The trial court found that many absentee ballots had irregularities, but only 88 were illegal. The supreme court subtracted the 88 invalid votes from Mr. Boardman’s 249-vote victory margin and said, “Edward F. Boardman is hereby declared the winner of the October 3, 1972, election for the Second District Court of Appeal by a total of 161 votes.” At 270. • In Mirlisena v. Fellerhoff, 463 N.E.2d 115 (Ohio 1984), after a recount Sally Fellerhoff beat John Mirlisena by 62 votes out of 76,592 total votes (or .008% of the vote) in her 1983 race for the city council in Cincinnati, Ohio. The court found, 103